Stone v. City of Oconomowoc

| Wis. | Feb 28, 1888

Cassoday, J.

1. By its charter the city is given “ the general powers possessed by municipal corporations at common law, and in addition thereto” such other powers as are therein “specifically granted.” Sec. 1, subch. 1, ch. 239, Laws of 1879. The charter further provides that “the common council shall have the control and management of the finances of the city and of all other property thereof and, in addition to the powers otherwise vested in it, it shall have full power by ordinance, resolution, or by-laws — (1) To receive, purchase, and hold, for the use of the city, any estate, real or personal, and to sell, lease, or convey the same. (2) To limit and define the duties and powers of officers and agents of the city. ... (5) To control and protect the public buildings, property, and records, and insure the same. . . . (12) To prevent or license and regulate the exhibitions of . . . theatrical performances or shows of any kind.” Subd. 1, 2, 5,12, sec. 3, subch. 4, ch. 239, Laws of 1879. These provisions of the charter, with the general statutes, gave to the mayor and common council of the city substantially the same powers in regard to letting the auditorium of the city hall for theaters, etc., for profit, as were possessed by the city of Platteville, as indicated in the opinion filed herewith in the case of Bell v. Platteville, ante, p. 139. The facts in the two cases are substantially' alike so far as they are material to the question presented. Eor the. reasons given in that opinion, we must hold that, with the powers thus possessed by the municipal authorities, and as incident to the city’s ownership of the property, they had the lawful right to let or use the auditorium of the hall for the purposes mentioned.

2. Having determined that such letting and use is lawful, there seems to be no ground for holding that the plaintiff may nevertheless restrain such lawful use merely because it lessens the profits which otherwise would accrue to him by the letting and use of his own hall for similar purposes. If the plaintiff is in fact injured by such diminution of customers, such injury is necessarily too remote and consequential to be. the basis of an action, and hence damnum absque injuria. This is too plain to require the citation of authority.

3. The mere allegation that it was the intention and purpose of the city authorities to use the “property precisely as if the said city was a private corporation and had erected the same with its private corporate funds,” imports no new fact into the complaint, but is at most a mere conclusion from the other facts alleged, which was not admitted by the demurrer. Pratt v. Lincoln Co. 61 Wis. 66.

By the Court.— The order of the circuit court is affirmed.